June 30, 2007

Reading the school integration case.

I've put off writing about the school integration cases that came out on Thursday, in part because I was writing under the pressure of deadlines on both Thursday and Friday, but also because I genuinely wanted to read the opinions and was not eager to express an instant opinion either to condemn or to praise what the Court did.

Back when cert. was granted, I called attention to the idea of deferring to local educational policymakers, which the Court did in Grutter, the University of Michigan Law School case where the Court approved of the use of race as a factor when the goal is classroom diversity.

So if I had one predisposition, it was that I hate to see community resources absorbed in litigation, and I would prefer to leave the results of local decisionmaking in place. That is, I find federalism and judicial restraint appealing. But, of course, I have a second predisposition: I want integration to succeed, and I hate to see a Supreme Court case that people will read as hostile to it.

I know the Court writes on top a large pile of difficult precedent, and I'm not going to use this blog post to try to sort through all of that and make a pronouncement about which opinion did the best job of sorting through it.

I will simply quote the passage that I found most persuasive, from Justice Breyer's dissenting opinion:
What has happened to ... respect for democratic local decisionmaking by States and school boards? For several decades this Court has rested its public school decisions upon Swann’s basic view that the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue. Now localities will have to cope with the difficult problems they face (including resegregation) deprived of one means they may find necessary.

And what of law’s concern to diminish and peacefully settle conflict among the Nation’s people? Instead of accommodating different good-faith visions of our country and our Constitution, today’s holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict.
These are values of federalism and judicial restraint, conservative values, which are especially worthy of respect when they they are not used to preserve or drag us back to our racist past.

IN THE COMMENTS: Many of my readers object to what I've said here, and I will respond to a few of them. Seven Machos writes:
I really don't understand your argument at all, Althouse. The Topeka Board of Education did plenty of local decisionmaking. The Court stepped in and said that certain decisions cannot be made. What's the difference here. You can argue with the policy issues, but you can't make a federalism argument here. The federal government can either... prevent unconstitutional practices or it can't.
You're assuming the practice in question is unconstitutional. That is the matter to be decided in the case. Justice Breyer is not saying what happened here is unconstitutional, but I can't (or won't) do anything about it. For him, considerations of federalism and judicial restraint affect the analysis of whether there is a right. Taking these and other concerns into account, he finds no right violated in this case. Brown v. Board of Education involved a very different set of facts. The Court has a difficult task in defining the scope of Equal Protection, it is not obvious where to draw the line, and it is appropriate for the Court to be aware that once it says that a right exists it is denying people the freedom to make choices in a democratic fashion and that it is diverting their time and money into litigation.

Beldar writes:
"What has happened to ... respect for democratic local decisionmaking by States and school boards?"

This was, of course, the exact argument used to justify racial segregation whose purpose was to benefit whites and harm blacks.

Chief Justice Roberts has it exactly right, and it's so profoundly simple that even a lawyer like me or a con law professor like you ought to get it:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
You are asserting that the simplest formulation of legal doctrine must be the correct one and implying that anyone who disagrees with that assertion is failing to understand something simple (and is, presumably, either an idiot or is playing dumb). In your view of the law, there can be no subtlety, no careful weighing? Are you willing to apply that proposition across the whole range of legal issues? Think it through. If courts could only proceed in that fashion, I think we would end up with fewer, not more rights.

From the other side, AJD said:
Oh, come on. Nothing about the man you've fawned over all year? The smiling C.J who is harkening us back to that racist past.

But weren't his prose great! Don't you love his sentences!!
There are limits to how long a blog post can be and I chose not to parse through all the opinions in this case, but in fact I don't think there is anything racist about the Chief Justice's opinion. He drew the line and defined the right in the way he saw fit, and he wrote a solid opinion explaining the decision. What I wrote in this post does not imply that he is taking us back to our racist past, only that he could have given more deference to the choice of a local majority because that democratic choice was not infected by racial animus.

And my support for the Roberts nomination had nothing to do with his good looks but with his learning and his powers of analysis. In fact, clear, elegant writing is a sign of the clear, strong thinking we want in a judge. And judges need to prove to us in writing that they are doing their job properly. Unlike you, I am able to respect and appreciate the work of judges who come to conclusions that I myself would not reach.

55 comments:

B said...

Either the Constitution - and therefore the laws and government of America - is colorblind or it isn't. The nebulous "middle-ground" of "affirmative" efforts to "redress" a perceived imbalance is just plain wrong.

America was assured in the 70's and early 80's - in order to get enough public and congressional support for affirmative action - that the use of race would eventually die out from being the necessary redress for past racial injustices - unequal schooling, job opportunities, etc.

Instead, as America has grown from 16% of it's black population being in the middle class in the mid 70's to over 42% today (with all signs pointing to continual growth in that percentage)there is the sentimental feeling that we can't let go of helping out through continued government-sponsored race recognition programs. Anyone remember the cries of doom when Clinton signed the welfare bill in 1996? The utter destruction of California predicted when the state outlawed bilingual education (I still remember being called a fascist and "m-f- bigot for being interviewed by an LA station and supporting that bill). How are those working out?

The belief that discrimination because of race - even for noble or good -hearted purposes - can have only beneficial results for some is always erroneous. Someone else always suffers because of it.


The United States of America should strive to be as color-blind as it can possibly be, without exception.

B said...

I certainly agree with what the liberal Juan Williams wrote in yesterday's New York Times, Don't Mourn Brown v. Board of Education:

With yesterday’s Supreme Court ruling ending the use of voluntary schemes to create racial balance among students, it is time to acknowledge that Brown’s time has passed. It is worthy of a send-off with fanfare for setting off the civil rights movement and inspiring social progress for women, gays and the poor. But the decision in Brown v. Board of Education that focused on outlawing segregated schools as unconstitutional is now out of step with American political and social realities.

Desegregation does not speak to dropout rates that hover near 50 percent for black and Hispanic high school students. It does not equip society to address the so-called achievement gap between black and white students that mocks Brown’s promise of equal educational opportunity.

And the fact is, during the last 20 years, with Brown in full force, America’s public schools have been growing more segregated — even as the nation has become more racially diverse. In 2001, the National Center for Education Statistics reported that the average white student attends a school that is 80 percent white, while 70 percent of black students attend schools where nearly two-thirds of students are black and Hispanic.


Even more interesting:

In 1990, after months of interviews with Justice Thurgood Marshall, who had been the lead lawyer for the N.A.A.C.P. Legal Defense Fund on the Brown case, I sat in his Supreme Court chambers with a final question. Almost 40 years later, was he satisfied with the outcome of the decision? Outside the courthouse, the failing Washington school system was hypersegregated, with more than 90 percent of its students black and Latino. Schools in the surrounding suburbs, meanwhile, were mostly white and producing some of the top students in the nation.

Had Mr. Marshall, the lawyer, made a mistake by insisting on racial integration instead of improvement in the quality of schools for black children?

His response was that seating black children next to white children in school had never been the point. It had been necessary only because all-white school boards were generously financing schools for white children while leaving black students in overcrowded, decrepit buildings with hand-me-down books and underpaid teachers. He had wanted black children to have the right to attend white schools as a point of leverage over the biased spending patterns of the segregationists who ran schools — both in the 17 states where racially separate schools were required by law and in other states where they were a matter of culture.

If black children had the right to be in schools with white children, Justice Marshall reasoned, then school board officials would have no choice but to equalize spending to protect the interests of their white children.



So, let's use better thought out, more current solution methods to address real problems in education, and stop making the schools a laboratory for social policies that no longer apply.

AJD said...

Oh, come on. Nothing about the man you've fawned over all year? The smiling C.J who is harkening us back to that racist past.

But weren't his prose great! Don't you love his sentences!!

reader_iam said...

What has happened to ... respect for democratic local decisionmaking by States and school boards?

and

And what of law’s concern to diminish and peacefully settle conflict among the Nation’s people?

From the perspective of what used to be taught in basic English classed, these are fascinating topic sentences.

But not only from that perspective alone.

Interwining that one, with a strong sense (and knowledge--and sense!--and knowledge!) of history and deja vu, one is transported back numbers of decades, and also numbers and numbers of decades.

As I said, fascinating.

SMGalbraith said...

One is tempted to compare Breyer's respect for the decisions by local officials with similar comments made in the Southern Manifesto.

An ugly temptation, so I'll let it pass.

However, there is it seems to me a critical distinction between de jure segregation and de facto. The latter is, of course, unacceptable.

The latter is a more difficult issue to grab. And once grabbed, seemingly incapable of removing from one's body.

I'm reminded again of that great distinction - and warning - made by Isaiah Berlin between negative and positive liberty.

Fighting de facto segregation permits the state - indeed requires the state - to do kinds of social engineering. All involving real live human beings.

Not sure the Roberts Court has this right. But I think they're closer to where we want to inevitably go as a nation then those who wish to continue with this type of government social engineering.

Bender said...

OK, so I want to send my kids to this public school or that one, or I, myself, want to go to this public college or that college, and the government asks, "Well, that depends, what color are you and your kids?"

"What color am I and my kids? None of your g*****n, f*****g business; that's what color we are!" Government has absolutely no business whatsoever getting into matters of color and race -- not even white elites like Breyer, et al. have any business asking such questions.

Bender said...

Oh, and by the way, it is not true that black kids can only learn when they are surrounded by white kids. It is not true that the black man can only succeed when he is saved by the white man. And those are the implicit racist premises of such race-conscious programs.

Sloanasaurus said...

These are values of federalism and judicial restraint, conservative values, which are especially worthy of respect when they they are not used to preserve or drag us back to our racist past.

Wait, except these were the same arguments that were being made for state rights before Brown. Now Breyer wants to make them after Brown to support more government discrimination that he likes? I don't get the liberals on this issue, why do they keep supporting discrimination based on race?

The court decided that there would be no more government discrimination based on race when it issued Brown v. Board. This latest decision sticks to that goal.

Cedarford said...

Two well thought out posts, "B", I thank you.

We have even moved past "Black-white". Hispanics are now the largest minority. Asians are close to 5% of the population.

Time to end all affirmative action bean counting and quotas.

And the factors that dictate who people would like to work with and have as neighbors have little to do with the kids being bused long distances to satisfy liberals wishes, or demands of blacks frozen in 1965 thinking to keep doing the same thing, decade after decade as their underclass worsens and any black that succeeds financially wishes distance from them...and their kids...

Nor is "sweet, blessed diversity" necessary to compete in a "multicultural world". The worlds most competitive in international business & leading exporters and most diplomatically sucessfull are countries that LACK diversity. Japan, China, Germany, Singapore, S Korea.

Proximity to black Americans in childhood does not help at all in "understanding" black Africa in business. Even for black Americans themselves.

The Japanese and Chinese practice of sending very junior business associates to foreign nations to study learn and observe so that in 20 years time they know the insides and outsides of doing business as senior business leaders works tons better than holding hands in American 5th grade class dressed in "native attire" and singing Ecuadoran or Gaboonian national songs.
Or having a Gaboonian in one of your 9th grade classes 20 years ago. BFD.

If the UN stands as the exemplar on how well diversity and multiculti work, they suck.

Troy said...

Breyer's newfound respect for local decision-making is laughable. Dragging us back to our racist past? That's a dense statement. "2 wrongs don't make a right" is Logic 101. Good for 5/9 of SCOTUS.

TMink said...

I am not sure who wants to drag us back to our racist past. Racists are marginalized now, effectively so. I see continued illegal immigration as a much larger threat to rekindle past racism then ending racial quotas.

And everyone loves Federalism when it suits their purpose. I know I do! Abortion, well that is obviously a states rights issue, as is legalization of marijuana. 2nd ammendment, that is a federal guarantee.

We usually embrace federalist principles when the government and/or populace at large is hostile to our desired position.

Trey

Gahrie said...

So a decision with the central premise of "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," is being " used to preserve or drag us back to our racist past.?

You can actually support that claim with a straight face?

dave™© said...

Time to end all affirmative action bean counting and quotas.

Shorter moronic brownshirt fuck: The South's gawna do it agin!!!

Tim said...

"Shorter moronic brownshirt fuck:" dave™©

Seven Machos said...

I really don't understand your argument at all, Althouse. The Topeka Board of Education did plenty of local decisionmaking. The Court stepped in and said that certain decisions cannot be made. What's the difference here. You can argue with the policy issues, but you can't make a federalism argument here. The federal government can either enter prevent unconstitutional practices or it can't.

Relatedly, but not directed at Althouse, I don't see a difference between benign and malign racism as practiced by governments. Getting into schools is a zero-sum game. When you prohibit black people, you are practicing racism. When you prohibit white people, you are practicing racism. When you mandate certain numbers of people from different racists, as I understand happened here, you are practicing racism.

It's the thing itself that is unconstitutional. All forms of racism should never be practiced by the U.S. government.

DKWalser said...

Ann,

I would have allowed my heart to govern my head in this area had we not moved to Texas. In the seven years we were there, I got an education in the mischief created by allowing local bureaucrats to obsess about race. The Dallas school district is STILL under court supervision. Just about every decision is based, in part if not in full, on race. Jobs are allocated based on race. Suppliers are chosen by race. Students are allocated to schools, and within schools, classes, based on race. The lion's share of the system's energy is devoted to race, not educating kids.

While not under court supervision, the surrounding school districts are infected by the same disease. Virtually all decisions are influenced by racial politics.

Teachers cannot discipline children of race x without also disciplining a like number of kids of race y -- or charges of racism will be made. As a result, teachers and principals are given virtually no discretion on what behaviors merit punishment or what that punishment might be.

Watching the increasingly rapid deterioration in the quality of the public schools our children attended, we realized we had three choices: home school, private school, or move. We moved.

This obsession over race has to stop. It cannot stop if the government continues to use race to determine the winners and losers in society.

XWL said...

I'm glad that Justice Kennedy decided (albeit in a muddled fashion) with the consevative four on this case.

Remedying, and ending de jure discrimination was always and will forever be the right thing to do.

But I think that fighting past discrimination with 'positive' forms of discrimination (and that's what affirmitave action is) to replace the bad old 'negative' discrimination was terrible policy, and lead to many problematic and easily foreseeable consequences.

The "War on Poverty" was largely meant to be a partial remedy for discrimination, and instead it helped destroyed the concept and existence of two parent households in black families. When President Clinton begrudgingly dismantled many of Johnson's and Nixon's programs welfare programs, that improved the lives of many that media at the time claimed would be terribly harmed.

Likewise bilingual education in California was meant to level the playing field between grade schoolers from English and Spanish speaking backgrounds, instead it crippled school adminstrators and largely held back the progress of the Spanish speaking students it was meant to help. Hispanic students are performing better in California than they did before Prop 227 passed banning the practice, but there are many who'll claim that's unrelated.

Prop 209 passed killing affirmative action in liberal California 11 years ago, and it hasn't meant an end of opportunity for all non-whites in the state. The opposite's been true. Things aren't perfect, and poverty still sucks, regardless of your skin color, but affirmative action has always been poorly targeted and implemented even worse. Middle class to affluent 'people of color' have received the lion share of benefit from affirmative action and they really don't need the help (even the not exactly conservative Kevin Drum admits as much).

Kirk said...

B,

What Juan Williams has to say is mostly reasonable, but note he--like so many others--plays fast and loose with this aspect:

"ending the use of voluntary schemes to create racial balance [emphasis added]"

Uh, guys, speaking to the Seattle situation at least, it may have been voluntary to the school board (nobody was forcing them to do it), but it was not voluntary to the students, who were being assigned w/o their approval to schools based on their purported race. I can't think of a better reminder of "our racist past" than such a practice. Good riddance!

SMGalbraith,

Based on the rest of what you say, don't you mean "former" instead of "latter" in your 3rd paragraph? (I.e. it's de jure segragation that is "of course" unacceptable.)

C4,

"Hispanics are now the largest minority". Well, yeah--nice trick that, though, since they aren't remotely a racial minority in the sense that people of African descent are.

Beldar said...

What has happened to ... respect for democratic local decisionmaking by States and school boards?"

This was, of course, the exact argument used to justify racial segregation whose purpose was to benefit whites and harm blacks.

Chief Justice Roberts has it exactly right, and it's so profoundly simple that even a lawyer like me or a con law professor like you ought to get it:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Mr.Murder said...

Forest for the trees item...

school consolidation. Everyone is being affected by that, a majority of the schools being shutdown by Bushco. in consoldiation are rural, trending white.

New item,
NCLB funding.

This will force massively unequal funding based on tests that are highly suspect. Most of the testing companies had only to prove they would donate to Bush. Little objective criteria was asked for during the 'bid submission' process.

Unenforced mandates, including supposed competitive bid processes, accompanies a coming wave of school purges.

hdhouse said...

The central "stupid" theme exhibited here is that affirmative action is discrimination. B notes Juan Williams as a convenience not that it is right as you look at his first post...where he cits that the black middle class has grown from 16% to 42% shows that the policy was working not failing. But it also shows that 58% are not middle class and I'll bet it isn't because they are all in that vaunted top 1% but are stuck solidly in the lower class as demonstrated by the compelling NOT INTEGRATED school attendance cited in the post...80% of black kids go to schools that are 2/3rds minority.

What that shows is given the option, given the nature of society, there will be discrimination...a purposeful stacking of the deck, either in red-lining, education, employment or whatever.

Much of what is said so far on this post spews forth from people who see Brown v. Board of Ed as a relic, a symbol of forcing people not to be bigots and racists in setting up systems that are inherently unjust. Affirmative action is no such thing. That you trot out Brown as being the same thing is beyond illogical and borders on stupidity and intellectual sloth.

And then there is Sloan. He said "Wait, except these were the same arguments that were being made for state rights before Brown."

No they weren't the same arguments. Do you even remotely understand Brown? Do you even remotely understand racial prejudice and you how do you dare compare that effort, combated in Brown, with affirmative action that permits and encourages the opening of some small amount of opportunity where none existed? How many of your precious white babies get left behind because a few black kids got a chance? It isn't 1:1 you putz. Ohhh but you will cite examples all those urban legend stats of "I know a guy who's kid didn't get into Michigan State because some black illiterate took his spot". Yea. Right.

So tell me this, Sloan, Cedarford and a few of your other screaming assholes who feel so threatened by giving a group of people you obviously dispise or seek through any means possible to keep "where they are"...do you want to go back to black only restrooms, water fountains, restaurants, buses..not just back of the bus but black only buses, schools, zoning, ....

just how far back do you want to push the clock?

P. Rich said...

Your Liberal knickers are showing, Althouse. While that cherrypicked quote might represent nice prose, it fails miserably as an argument. The fact that Roberts and Thomas decimated the minority position on this ruling was conspicuous by its absence from your comments.

Breyer's is the typical whine we hear when rationality prevails over Leftist manipulation. The court is a great tool for social engineering, except when it doesn't rule the "right" way, hmmm? Pathetic.

Eric Muller said...

Ann, I initially share your instinct to defer to local boards ... but then I look at what the Seattle School District actually did here, and have a hard time squaring it with the standard of even intermediate scrutiny, let alone anything we might call "strict."

The school board defended its racial assignment system on a desire to sustain and enhance diversity in its schools. I don't doubt for a second that racial and ethnic diversity is a crucial thing to sustain in a high school. But the devil's in the details: the only diversity criterion Seattle used was to place a student in either a "white" or a "non-white" category. In a city like Seattle, that's just a crazy method of pursuing diversity, so disconnected from the actual racial makeup of the district as to suggest that the goal of "diversity" was not what really animated the program. There are as many Asian students as African American students in the Seattle School district. Yet the Seattle plan paid no attention at all to whether a school's "non-white" students were black, Asian, Latino, Native American, or from Remulak, a small town in France. A Seattle high school that is 40 percent white and 60 percent black is just as "diverse" under the Seattle plan as is a school that is 40 percent white, 10 percent black, 20 percent Asian, and 10 percent Latino.

Surely that's not a definition of "diversity" that I would wish to endorse.

I read Justice Kennedy to say to Seattle something like this: "I'm with you on the value of diversity, Seattle, but please don't come to me with a sloppy piece of junk like this that conceives of diversity as simplistically as simply ensuring that there will be some white kids in every high school."

So I think Kennedy gets it right here. Much as I support the goal of diversity in our schools and what you call the conservative value of deferring to local elected bodies, I just don't see the Seattle School Board's plan as pursuing true racial/ethnic diversity, and for that reason I don't see it as deserving of deference.

Gahrie said...

hdhouse:

Your 6:30 A.M. post is contemptable, both for it's ad hominen attacks against those who support a colorblind government, and for the paternalistic racism it shows for Black Americans.

But it also shows that 58% are not middle class and I'll bet it isn't because they are all in that vaunted top 1% but are stuck solidly in the lower class as demonstrated by the compelling NOT INTEGRATED school attendance cited in the post...80% of black kids go to schools that are 2/3rds minority.

Most of those 58% that are not in the middle class are stuck in poverty not because of racism, but because they are victims of the culture of failure perpetuated in large part by those who think like you. A culture in which over %50 of black children live in single parent families. A culture that in large part brands academic success as "acting white" and celebrates gang life, involvement with drugs and the cult of victimology.

As for those failing, largely inner-city, minority-majority schools:

Who do you think the teachers and administrators are? Who do you think the schoolboard members are? Who do you think is sitting on the city councils, and are the mayors? The vast majority of these schools are being run by minorities. Are they racist? These aren't schools being neglected by racist whites.

AllenS said...

Thank you, Ann.

Zeb Quinn said...

Local decision-making? That's what this has always been about. When considering the local decision-making of school districts like Seattle, who were never segregated by law nor were they ever subject to court-ordered desegregation, and you have local decision-making that excludes one race in favor of another race --dividing people up according to race-- what you then and now have is local decision-making by a school district to actually go out of its way to create a school district who segregates by law. And what the majority is saying is, no, that's not permissible. They're saying, you missed the point Seattle. The point not to create new ways of segregating by race and news ways to rationalize it. The point is to end it. Period. What's so hard about that to understand?

"Local decision-making" is not the magic mantra. Topeka, for instance, had local decision-making galore, and we can all see how well that worked out and what happened there. Local decision-making will be fine and dandy and will be left alone on that basis as long as it is race-neutral local decision making.

Since you're an old hippie, try it this way. Remember the old 60s slogan, "killing to end war is like fu*king to end virginity"? Remember that one? So it is with the concept of discriminating on account of race so as to end discriminating on account of race.

vet66 said...

No matter how well intentioned school integration was originally intended, it was perverted by the liberals engaged in social engineering.

Having lived through that era in the Los Angeles Unified School district during the 1950's, it became clear that busing was going to be the demise of inner city schools that owed their existence to liberal do-gooders and the property tax.

We enjoyed good schools where the property tax was high and bad schools where white/black flight drove down property taxes/

The grand plan of racial integration was commendable and supposedly of limited duration. Instead, it endured to become an entitlement program that promoted black victimhood and a perpetual class of poor, black and white, that produced several generations of an entitlement culture.

It reached it's logical height of absurdity when racial integration for it's own sake placed diversity over the qualification of applicants. CJ Roberts is begging the question I have been presenting to EEOC bureaucrats as to when is it possible for non-minorities to be discriminated against?

I am sure Rev. Jackson is having palpitations as a result of this ruling. His Rainbow Pu(tsch)sh organization may have trouble extorting money in the future.

Pouring more money into failing schools is not the answer despite what the NEA/ATA lobbyists say. The incompetency of most inner-city schools is appalling. Now that I think about it, the incompetency of many non-inner-city schools is appalling given the lack of discipline exhibited by both teachers and students in sex cases, disruptions, and hiding behind free speech for students to do whatever they desire short of learning reading, writing, and arithmetic.

Ann Althouse said...

Zeb: "Since you're an old hippie, try it this way. Remember the old 60s slogan, "killing to end war is like fu*king to end virginity"?"

Sounds pretty effective especially in the latter case.

Zeb Quinn said...

My bad. I couldn't remember exactly how it went, but hopefully it won't get in the way of you getting what I meant.

Gahrie said...

The quote is supposed to be "fucking to support/preserve virginity"

reader_iam said...

Out of sheer curiosity, how many here attended public schools in school systems under court-ordered and -monitored desegregation plans (that is, plans designed to redress deliberate segregation)?

Ann Althouse said...

Zeb, Gahrie: I know, but it amused me.

Nevertheless, you don't expect me to support the view that military action is never justified in the service of peace? I'm not really buying that hippie argument.

By the same token, it's at least possible that taking account of race is part of getting past racial divisions, so it's not the same as sexual intercourse and virginity.

I don't agree that some absolute purity is required by the Constitution, forbidding remedies for real life difficulties that decent people are trying to solve within a democratic process.

Good sloganeering ≠ good law.

Gahrie said...

Althouse:

The question before us is not whether or not race conscious remedies were or are ever appropriate. That issue is settled.

Some of the questions are:

When are they appropriate, and for how long?

What indicators or evidence are to be used to judge progress in this area?

When is it appropriate to extend this protected class status to other classes than American Blacks?

Is the goal an eventual colorblind system? Or are racial politics a permanent feature of the landscape?

Have the harms created by race conscious policies been outweighed by the benefits?

How significant have the benefits been?

Ann Althouse said...

Gahrie: It looks as though you aren't making what is a crucial distinction between:

1. judges finding a violation of equal protection and imposing race-conscious remedies on an unwilling community

and

2. local communities choosing a race-conscious approach to school assignments and a court that is asked to intervene and deprive them of what they chose.

You can say that judges ought to end compulsory remedies after a certain point and still be willing to allow local democracies to experiment with remedies that they voluntarily want.

dougjnn said...

It’s been widely noted that the concurrence of Kennedy is of crucial importance in understanding what the affirmative action or diversity standards will be moving forward, certainly for pre college public schools, but probably also much more widely than that.

However, Kennedy’s language in his Grutter dissent (the case which narrowly found the Univ. of Michigan’s affirmative action program permissible) is also of crucial importance. In fact under those facts Kennedy found that Michigan Law’s program weighted race too heavily and that it was in actual fact a rough quota system masking under different name and pretext.

He wrote in his Grutter dissent:

To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decision making. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny. ***

If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review.


Following Grutter the conventional wisdom arose that as long as universities mouthed slogans such as “one factor among many” and perhaps had complex individual weighing admissions programs, then admissions goals for certain minorities could in fact work as rough minimum quotas. Such an approach including by university admissions offices is very unlikely to get Kennedy’s support in any future Supreme Court case just as it didn’t in Grutter. Whether or not the Court will explicitly overrule Grutter I don’t know, but I’m quite sure it will begin paring back quota like systems which have relied on reading Grutter expansively.

However, it also wouldn’t surprise me for there to be a great deal of civil disobedience at universities as these future cases unfold.

Mortimer Brezny said...

Unlike you, I am able to respect and appreciate the work of judges who come to conclusions that I myself would not reach.

Except in his career as an appellate litigator, both in and out of government, he stretches cases beyond their limit. He was even once taken to task by a hot bench of the Supreme Court for stretching a case. And, as Justice Stevens points out, in Roberts' "solid" opinion, he ignores/mischaracterizes certain precedent that is on-point without explanation. That isn't a sign of craft: it is a sign of craftiness.

I don't respect such means, even if I agree with the ends obtained.

Gahrie said...

"You can say that judges ought to end compulsory remedies after a certain point and still be willing to allow local democracies to experiment with remedies that they voluntarily want."

Why? What value is there in any practice which allows any government to discriminate based on race? I am a firm believer in the concept behind the Chief Justice's quote. The way to end racial discrimination, is to end racial discrimination.

If you would allow a schoolboard to assign schools based on race, why couldn't they do this to re-segregate their schools? Perhaps they feel that students would learn better surrounded by their own race. There are many in the Black and Hispanic communities that are forming charter schools that are explicitly segregationist.

How about the schoolboard decided to assign schools based on gender? (either to balance or to segregate)

If there is value in allowing local democracies to experiment with remedies, why are you not willing to extend this same belief to other areas, such as abortion, school prayer or free speech?

george said...

Brown v. Board of Education involved a very different set of facts.

Are they really so different? Both cases, in their essence, involve parents objecting to school boards saying "Your child can attend this school, but not that one, because of the color of their skin."

[H]e could have given more deference to the choice of a local majority because that democratic choice was not infected by racial animus.

This is making an assumption that is not entirely obvious, to say the least.

Internet Ronin said...

How about the schoolboard decided to assign schools based on gender?

IIRC, they wanted to try that in NYC a few years ago - a boy's academy because of the high drop-out rates, etc. As I recall, there definitely was "Hell to pay" for even broaching the idea and it was dropped.

hdhouse said...

Guthrie coughed up a firball and said: "hdhouse: Your 6:30 A.M. post is contemptable, both for it's ad hominen attacks against those who support a colorblind government, and for the paternalistic racism it shows for Black Americans."

Ahhh a colorblind government....I love that....let's see what you are really saying...i've got mine, you go get yours, I won't make your race an issue but tell you what...you start a minute after i leave..see ya at the finish line.

right right right right...forever to the right...

You spew the "paternalistic" crap but that is an open admission that you do nothing and more important, you think blacks are idiots...you call them that with paternalistic remarks...you are effectively saying that a black doesn't have a brain..he just votes democratic out of habit...and you good mastahhhs', you bullwhip johnnys, they just don't realize how much you have done for them....and now you are angered that they don't want to just keep getting the shaft from one republican after another...

Guthrie, you want to argue race with me? You want to go one on one with me over the GOP semblance of racial equality in this country...

Bring it on baby bring it one. You don't have shit in your bag of tricks and right from the getgo you have 95% of the black vote in this country that thinks your eyes are brown because you are up to here full of it.

B said...

Don't know if anyone is still reading this post, but, if I may:

1) hdhouse, in his first post above - though clothing his comments in needless personal attacks - actually raises several fair points. I just don't have the time to answer right now, because first, no one else reading here actually belives that people who support a colorblind reading of the Constitution do so because they are racist, and second, because -

2) In the case of schools, racial integration/segregation is the wrong issue. I do believe it's time has passed in America as an educational solution.

As Thurgood Marshall himself was noted to have stated (my 2nd post above)the purpose of Brown was not so much about integration as it was about raising the quality of educational opportunities for black children.

And that is a worthy goal everyone can agree on.

My personal view is that, if there are compulsory attendance laws in a state, then the state must oversee it's children's education.

Therefore, every school district should be alloted equal funds per student, and ALL county property taxes meant for education would go to the state for, again, equal educational disbursement. No one public school in any state would have more annually spent per student than any other - period. While this would - as so many are quick to point out like its a bad thing - cause many rich to go the private school route, that is not a sufficient reason to keep from equalizing the state's schools.

I am someone who sees America's public school system as the most easily fixable but most intransigent problem of our society today. If we really believe that education is the most important part of our national future then we will fix it Malcolm X style: by any means necessary.

But we - and this is true of most Americans, myself included - don't really care enough about what is happening to our future generations' education. We are all willing to continue sacrificing the minds and talents of our young people of all races while we know full well how to fix our educational system.

We lack the political and moral will to do what is necessary.

And for that, speaking as a member of the baby boomer generation, I am ashamed.

Gahrie said...

hdhouse:

You ignorant slut.

So I am racist because I think everyone is equal and should be treated equal. You however are a noble soldier for equality, because you believe that Blacks need special treatment and government conferred advantages, now and out to some undefined point in the future. (forever?)

riiiight.

Mindsteps said...

I am not a lawyer, did not read the opinions issued by the supreme court, and am at even higher risk of writing something stupider than I usually am. Nonetheless, I think I disagree with Justice Roberts comment on empirical grounds. Now since I did not read his opinion in toto, I may be taking his observation out of context, so feel free to clarify:

Roberts suggested "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

I believe I could stop discriminating on the basis of race, yet could continue to, in a de facto fashion, discriminate on the basis of race.

For example, I could select people on the basis of eye color, yet end up favoring one racial group over another due to my non-racial selection criteria. I could say, discriminate on the basis of height and end up with a selection process that also proves somewhat discriminatory against some racial or ethnic groups (or gender, for that matter).

Also, fwiw, I was appreciative of b directing me to Juan Williams and found his op-ed to be extremely thought provoking. I think he has some decent street cred on the issue.

Internet Ronin said...

With your attitude as expressed, HDHouse, there is obviously no point in anyone attempting to either understand or respond to your incoherent comments and obvious inaccuracies. Congratulations at stifling free expression.

Kirk said...

B,

Your "solution" is manifestly silly, as there is no linear relationship between per-student spending and outcomes in this country. In fact, some of the highest-spending districts have very poor outcomes (notably D.C.)

B said...

Kirk,

I'm afraid that you miss my point.

The equalization of per pupil spending (and notice that I did not determine a high or low amount) is PART of a solution towards making certain that black students receive similar educational opportunity.

PART of.

You are talking to someone who has 3 grown children, each of whom participated (at individual levels) in public, private, and home schooling. I am extremely well versed in the spending vs. results ratios, particularly in California.

I say that to ask that we not talk at cross purposes here.

Though my wife (she was a public school teacher when we met) and I home-schooled each of children for just over 50% of their minor years, we are not evangelists for home schooling only. Nor are we for private schools only.

The public school system in America is a practical necessity that has become an unfortunate "war college" for competing societal ideologies. There is no intelligent adult in America that doesn't believe that the function of teaching the 3 r's can actually be accomplished in every school in America, without exception. The sad problem is everything that is added on to that, making the public school system the primary "socializer" of America. And therefore, the public schools - created for one primary purpose - are burdened with a task they cannot possibly accomplish: the raising of children under the constant tension of ineffectively administered ideological social education programs.

We have a disturbingly complex educational system in America.

But we do not have a complex educational problem. We have only to muster the will and desire to do the right things by our nations children. We can right this in less than 10 years.

What we don't have in America is the political balls. I include myself in that. After participating in bruising legislative battles in California regarding the private school laws (all of which we were fortunate enough to win), I determined that even good people don't, in the end, really give a rat's ass about the future of education in America:

The special interests are too entrenched - yes, that is the NEA, an organization that stinks from the head down and doesn't give a true rip about it's millions of hardworking member teachers or students, at the expense of it's leader's ideologies, all the while representing countless hundreds of thousands of teachers who differ with it's leaders politically and educationally. Here is something you can bet your life on - as long as there is a national union representing teachers that takes political stands - of any stripe - rather than restrict itself to the issues of direct education, there will be NO "reform". Today, it's the Democrats who take contribution money over your children's and grandchildren's futures; tomorrow, it might be the Republican's. Either way, the Union's goals are primarily ( as they are supposed to be) to serve and perpetuate the Union first. Why would you trust anyone's agenda for your children when it comes to money first?

Spare me the BS spin of "anyone attacking the NEA is attacking 'teachers'". Even third graders recognize that leaders can be corrupt while followers are good (naive).

Second, we must honestly decide what the "basics" are in education - basics before "values". Asking politicians of either stripe to write down the basics before "values" is political suicide.

Third . . . oh forget it. We don't have the national backbone to get to second base.

B said...

I wrote immediately above:

Spare me the BS spin of "anyone attacking the NEA is attacking 'teachers'". Even third graders recognize that leaders can be corrupt while followers are good (naive).

Which of course is an explanation that all of our "Bush-administration-hating" friends can easily grasp.

Welcome.

TMink said...

A few comments:

My eyes actually are brown.

Who are these people that want to return to Jim Crow? I do not know them, I don't read about them. The vast majority of Aryan Nation types I know of are in prison. Who are these people that want to abuse black folks, where are they, and are they worth worrying about?

I believe that the hearts and minds of Americans has changed. Some of it is due to affirmative action I am sure. But in business, people care about making money. Race is not an issue.

The ability to speak well is an issue, as is education and work experience. But race is no longer a concern.

Wouldn't school choice and vouchers make all the race nonsense disappear? People apply for the schools they want and a lottery decides who gets what choice. Poor schools are given new staff or bought by a private corp or a co-op. Choice is good, right? Freedom of access is good right? Then so are vouchers.

Trey

hdhouse said...

trey...vouchers 1. don't work. never have. 2. you assume that there are open desks in the best schools and just by applying the voucher system you get in. not true also.

guthrie opined:
"hdhouse: You ignorant slut. So I am racist because...."

Well yes you are and its good that you realize it and more important you can start some therapy to cure it....otherwise i am not sure what to make of you...but then again, i don't care.

Kirk said...

Whoa, B, please climb down off your soapbox for a minute, and consider the cognitive dissonance between your assessment (correct, fwiw) that the problem is we are swamping the schools in non-basics, and need to develop the will to change this; and your insistence that it will require exact statewide budget equalization to achieve this.

B said...

"Statewide budget equalization" is necessary (I could really care less about the amount) to remove the appearance - and reality - of unequal opportunity. That exists nowhere in America in the public systems today. "Local control" means local property taxes go to local schools. Stop that! If the law is compulsory, the every student should be equal in it's treatment by the state under the law. Equalize every public amount spent in a state and no one - NO ONE - will be able to cry discrimination on state budget priorities.

Now - if that takes the form of vouchers, tax credits, actual direct disbursement, or a combination of any or all, the point is clear: every student in a state must be given an equal - as far as the state itself is concerned - amount as any other student. Otherwise, it wil always be a distraction from education.

We could build a real educational miracle from there. On less money than an average state spends per pupil now.

Imagine that. Dare to dream that. No one in California able to complain that they were in a "poorer school district".

Better, imagine being able to say to a whiner, "you got the same support from the state - at least in the public arena - as anyone else did. It's what you chose to do with it that made you."

Well, we can dream.

hdhouse said...

B..... OH PLEASE STOP.

1. you seem to think that equalizing per student spending statewide, even nationally is the magic bullet. I suppose then that New York City or Long Island students will be given the same amount of educational dollars as an upstate New York or a Mississippi kid? Is this your solution? Where do you get ideas like that and more important why do you think they will work? what economics do you know that the entire rest of the free world doesn't know?

2. is your "thinking" really just a not so clever disguise for vouchers? as if a million private school desks are just going to pop up tomorrow for "smart" kids to fill? you voucher morons always leave that out....where are these schools going to come from? where is the desk space? why should i pay for private schools?

are you a socialist or what?

Mindsteps said...

I think vouchers are an interesting idea. However, some of the problems in our public schools seem to be related to ruptured societal and economic mechanisms and processes (crime, poverty, fractured or inadequate family structures across generations, substance abuse, demoralization, exploitative and corrupt leadership.) To proponents of vouchers, I would be interested in how they believe a voucher system would interact with these socio-economic impairments.

TMink said...

Mr. House,
I think that the capitalist system would spring into action to take advantage of an across the board, real voucher system. Part of the problem is a state run monopoly that is unable and/or unwilling to compete with the free market.
Right now, one of the private schools in Nashville has trouble keeping a significant minotrity presence past middle school. I know of several high achieving minority kids in my practice whose parents have them in magnet schools but drool over the private schools. They just do not have the resources. Give them the funds and the choice, and the private school would take those kids in a heartbeat. The school is bigtime interested in diversity. And these high achieving black kids would be a prize.

Need, meet choice. Choice, meet need.

There are more problems with our educational system. The biggest two as I see them are parents who are not doing their job and teachers who are not doing theirs. Vouchers would help motivated parents and motivated teachers find each other.

Not overnight. But if you allow money to be made, and competition to get it, people will fight to get their slice of the pie.

Trey

Kirk said...

B,

Do you really think a de facto reasonable situation will keep the whiners from whining, and the agitators from agitating? Really????

Your naivete would be charming, if it weren't for the fact that those are our tax dollars at waste.